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SOME REMARKS 



ON THE 



HISTORY AND USES OF 
POTOMAC PARK 



BY 



ALEXANDER B. HAGNER, A.M.. LL.D. 





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SOME REMARKS 



ON THE 



History and Uses of Potomac Park 



BY 



ALEXANDER B. HAGNER, A.M.. LL.D. 

Associate Justice (retired) 

Supreme Court of the District of Columbia 



1^ 



WASHINGTON. D. C. 

PRESS OF W. F. ROBERTS COMPANY 

19 14 



Washington, D. C, July i6, 1914. 



The Honorable Alexander B. Hagner, 
Washington, D. C. 

Dear Mr. Justice Hagner: — 

We desire the opportunity of having printed in 
permanent form for the benefit of the future your recent 
address upon the history of the reclamation of the 
"Potomac Flats" and the establishment of Potomac 
Park. The important and honorable part which you 
took in that great project for the preservation of the 
water front of the National Capital for public uses, and 
especially for the benefit of the whole people as a public 
park, by your authorship of the opinion containing the 
judgment of the Supreme Court of the District of Co- 
lumbia in General Term, in the celebrated Morris case, 
which, being affirmed by the Supreme Court of the 
United States, determined, forever, that "the rights of 
property and sovereignty over the river Potomac, with 
its shores and adjacent lands, devolved upon the United 
States as the common property of the people, to be 
used solely for public purposes for the benefit of the 
seat of government," made it especially fitting that you 
should deliver that address, and its character makes it 
appropriate that it should be published for the benefit 
of all who are, or shall be, interested in the develop- 
ment of the National Capital. Nothing in your distin- 



guished career can give you more pleasure than the 
service which you rendered in the Morris case to the 
Capital and the country, whose results shall endure for 
all time to come. 

With appreciation of all your public service and par- 
ticularly of the episode resulting in the creation of the 
Potomac Park, we beg leave to subscribe ourselves. 

Very respectfully and sincerely yours, 



Mahlon Pitney 

Geo. W. White 

Robt. N. Harper 

Thos. H. Anderson 

Allen C. Clark 

W. F. Roberts 

Jas. F. Hood 

G. W. Baird 

Jno. Joy Edson 

Mordecai T. Endicott 

Glenn Brown 

Maxwell Van Zandt WoodhuU 

Henry E. Davis 

H. D. Rouzer 

Hannis Taylor 

Otis D. Swett 

Oliver Metzerott 

Duane E. Fox 

Frank Boughton 



Henry B. F. Macfarland 
Charles E. Munroe 
C. F. Bell 
Willis L. Moore 
Frank W. Hackett 
John C. Wilson 

F. A. Richardson 
J. R. Marshall 
John D. Patten 
George F. Bowerman 
Mitchell Carroll 
William Corcoran Hill 
Wm. Bruce King 
Henry H. Bates 

A. B. Coolidge 
John B. Larner 
Theo. N. Gill 

G. W. Littlehales 
Fox 




Gentlemen of the Cosmos Club: 

In performance of a somewhat belated promise to 
submit some remarks to my fellow members on a mat- 
ter that might interest them, I shall say something 
tonight, as briefly as I may, with reference to the his- 
tory of the reclamation of the Potomac Flats, with some 
suggestions as to a wise method for their management. 

The subject is of the utmost importance to the coun- 
try at large, and especially to the people of the District 
of Columbia. It is intimately connected with the estab- 
lishment of our National Government, and is almost 
unique in the world's history. Since Rome was founded 
by the alleged twin brothers, there had been no instance 
of the creation by a people in advance of an unoccupied 
locality as its future seat of government — for the found- 
ing of St. Petersburg by the great Czar was only the 
removal of the capital that was already established to 
another spot. 

So our Constitution (Article I, Section 5) origi- 
nated a novel provision in Qovemment, when it au- 
thorized Congress to exercise exclusive legislation in all 
cases whatsoever over such district (not exceeding ten 
miles square) as may, by cession of particular States, 
and the acceptance of Congress, become the seat of the 
Government of the United States. 



The States of Maryland and Virginia were "the par- 
ticular States" that ceded to the Government of the 
United States all the territory thereafter constituting 
the "ten miles square;" the portion ceded by Mary- 
land being more than two-thirds of the entire area 
(a large part of it comprehending the Potomac River 
and the lands beneath its waters), and, after the accept- 
ance of these cessions by Congress, the territory indi- 
cated thereby became the seat of the National Gov- 
ernment. 

At the time of this cession the State of Maryland 
claimed title and jurisdiction to the Potomac River, with 
the rights to the soil beneath its waters up to high- water 
mark on its southern bank. This title was plainly con- 
ferred by the words of the grant from Charles the First 
to Cecilius Calvert, the second Lord Baltimore, of 20th 
June, 1632; and has been affirmed by repeated adjudica- 
tions of the courts.* 

It may interest such of you as were, in your school 
days, inclined to be skeptical as to the practical value of 
the study of Latin, to be reminded of an instance where 
we became the gainers by a recognition of its grammati- 
cal rules. In its English translation the charter de- 
scribed the northern boundary (substantially that which 
afterward became known as Mason and Dixon's line) 
as "passing west in a right line by the degree aforesaid 
unto the meridian of the first fountain of the River 
Pottomack; thence verging toward the south unto the 
urther bank of the said river, and following the same, 
on the west and south, unto a certain place called Cin- 
quack, situate near the mouth of the said river, where 
it disembogues into the aforesaid Bay of Chesapeake." 

Lord Baltimore contended that these words impera- 
tively carried the meridian line unto the further bank of 



*1 Mackay 226, R. R. & Bridge Co. vs. District of Columbia. 

6 



the river at high- water mark on the southern or further 
bank. 

The only question that could be made as to the cor- 
rectness of this construction arose out of the apparent 
ambiguity of the words "the same," which, it was 
argued, might refer to "the river" instead of "the bank." 
But a reference to the original Latin of the charter re- 
moved the supposed doubt, for its words are, "deinde 
vergendo versus meridiem ad ulteriorem dicti fluminis 
ripam, et earn sequendo," etc. — and as the feminine 
pronoun "earn," translated "i/ie same, " must agree with 
the feminine ripam, instead of the neuter noun flumen ; 
it demonstrated that the charter undeniably declared 
that the entire southern boundary was to follow the 
further hank, at high-water mark, instead of following 
the middle thread of the river. 

All these rights to the river and the soil beneath, thus 
belonging to the State of Maryland, fully devolved by 
the cession upon the Government of the United States, 
precisely as they had belonged to Maryland. 

It was after the reception of this title that Congress 
passed the several laws designed to further the improve- 
ment of the River Potomac and the subjacent soil, by 
filling up what were called the Flats ; and being apprised 
that various claims were advanced by individuals to 
rights therein, it passed the Act of August, 1886, en- 
titled "An Act for protecting the interests of the United 
States in the Potomac Flats," under which it was made 
the duty of the Attorney-General to institute suit 
against all claimants of title to any part of the marshes 
or flats within the limits of the proposed improvements ; 
to procure an adjudication and settlement of these 
claims. 

In performance of these directions the United States 
instituted a suit in the Supreme Court of the District of 
Columbia against Martin F. Morris, and some fifty 
others, who appeared and presented their claims, upon 



a variety of grounds; and were represented by nu- 
merous counsel, many of distinction. 

The litigation assumed very large dimensions; and 
the seven printed volumes, and the accompanying maps 
and charts, with the exhaustive briefs which the indus- 
try and ingenuity of counsel presented, will serve to illus- 
trate the history of what may well be classed among the 
causes celebres of our legal history. 

These documents it is my desire to place in the Li- 
brary of the Cosmos Club, and I ask their acceptance 
by the Club. 

The cause came on to be heard before Chief Justice 
Bingham and Justices Hagner and McComas, and was 
argued with the fullest allowance of time by some 
twenty-four counsel. 

The opinion, a copy of which is also placed before you, 
examined every point presented that conflicted with the 
claims of the United States to its full ownership of the 
property. 

The Decree, bearing date the 17th of October, 1895, iri 
its FIRST paragraph, decided that all manner of claims 
under what had been called the Kidwell patent were 
invalid, void, and of no effect, and declared that the said 
patent was thereby vacated, annulled, and set aside. 

By paragraph SECOND it was decided that the claims 
of each and all of the other parties defendant, set forth 
in their respective answers, to any rights, titles and in- 
terests, riparian or otherwise, in the said land or water, 
or any portion thereof (except as to the parties and to 
the extent thereinafter to be mentioned in the fourth 
paragraph of the Decree), were thereby held void. 

By paragraph THIRD it was decided that there did 
not exist (except as aforesaid) any right, title or inter- 
est in any person or corporation being a party to the 
cause, to or in any part of the said land or water, ad- 
verse to the complete and paramount rights of the 
United States to the said land or water; and that the 

8 



right and title of the United States (except as aforesaid) 
to all of the land and water included within the limits of 
the said improvement of the Potomac River and its 
Flats, as the said limits were described .in the bill of com- 
plaint, were thereby held and declared to be absolute 
in the United States as against all the defendants to 
said cause, and as against all persons whomsoever 
claiming any rights, titles or interests therein who might 
have failed to appear and set forth their claims. 

In the progress of the cause the court had observed 
that the Government authorities had erroneously ex- 
tended the filling over parts or selvedges of some lots 
north of Water Street. Although their owners had 
made no claim in the suit for this act of the Government, 
the court nevertheless considered they were entitled to 
receive an indemnification for such injury as they had 
thus sustained ; and with this view it added (sua sponte) 
the FOURTH paragraph to the Decree, declaring such 
owners were entitled to be indemnified for such impair- 
ment of their property rights; and also by paragraph 
FIFTH, it directed further testimony to be taken to 
ascertain the facts as to value and ownership of the 
parts of such lots requisite to a just indemnification in 
the premises. These provisions were subsequently car- 
ried into effect for the benefit of the said lot owners. 

On appeal to the Supreme Court of the United States 
the Decree below was affirmed (with a dissent on the 
part of two of the learned Justices from one point in the 
cause), and thus the Decree of the Supreme Court of 
the District of Columbia in this cause stands settled 
forever. 

It is not too much to affirm that but few causes of 
greater interest to the public at large, and none of more 
inestimable consequence to the Government at Wash- 
ington and to the people of this District, have ever ap- 
peared before the courts. 



For it had clearly appeared in the progress of the 
cause that the manifest purpose of numbers of the 
claimants to the properties involved was to wrest them 
from the hands of the nation, and apply them, when ob- 
tained, to their private advantages, as a giant specu- 
lation. 

The court had adverted to the evidence that such 
claims had already been subdivided into thousands of 
parts, which were being placed on the market and con- 
veyed to purchasers, upon alleged considerations of ex- 
tremely large sums; and that a syndicate had already 
been formed which it was hoped would purchase such 
interests for a price not less than $1,000,000; and had 
further remarked, that "for a Government to part with 
a portion of its domain, beneath or in the waters of a 
navigable river, to encourage such a scheme, would be 
a wide departure from the only legitimate purpose for 
which the sovereign would have the power to relinquish 
interests it held only in trust for the common use." 

The Houses of Congress were evidently impressed 
with the great importance of preventing, in the future, 
the consummation of the wrong to the public which had 
been averted by the decision of the courts; and their 
subsequent legislation seemed to have been studiously 
framed with such a purpose, in sympathy with the spirit 
of the resolution of 1839 that the lands had been ceded 
to and acquired by the United States for public pur- 
poses, and for those only; thus adopting the conclusions 
of the Supreme Court in Van Ness vs. The City of 
Washington, 4 Peters 281, as expressed by Mr. Justice 
Story: 

"The original owners of the lands must have supposed 
that Congress would not seek to destroy what its own 
legislation had created and fostered into being. On the 
other hand, it must have been obvious, that as Congress 
must ever have an interest to protect and aid the city, it 
would for this very purpose be most impolitic and incon- 

10 



venient to lay any obstructions to the most free exer- 
cise of its powers over it. The city was designed to 
last in perpetuity — Capitoli immobile saxum." 

The Supreme Court of the District, concurring in 
these just views, remarked: 

"The entire history of the District, since the com- 
mencement of the Government more than a century ago, 
exhibits in an unmistakable manner the continuous ex- 
ercise by the United States of complete dominion and 
exclusive jurisdiction over the waters of the Potomac 
and the subjacent soil ; always exercised for the benefit 
of the city as the permanent seat of government of the 
nation, and in no .instance for that of private individuals. 
Nothing could more conclusively demonstrate that, in 
the opinion of the successive Congresses, some of them 
composed in part of the men who had helped to build 
the nation, these great interests (in the words of the 
resolution of 1839) had been 'ceded to and acquired by 
the United States for public purposes, ' and for those 
only; and all the affirmative evidence afforded by this 
consistent course of legislative conduct is not opposed 
by a single legislative or governmental act to the con- 
trary. 

"Guided by these considerations in our examination of 
the testimony and of the entire case, we are of opinion 
that the cession of the territory and exclusive jurisdic- 
tion within the District of Columbia by the State of 
Maryland, having been accepted by the Government 
upon the obligation and trust assumed in behalf of the 
people of the United States to establish there the Capi- 
tal City which was to become the seat of government 
of the nation, the rights of property and sovereignty 
over the River Potomac, with its shores and adjacent 
lands, devolved upon the United States as the common 
property of the people, to be used solely for public pur- 
poses for the benefit of the seat of government, could 
not be held as vendible to private persons, and in that 

11 



way available as a source of pecuniary advantage to the 
United States." 

In this spirit Congress passed the Act of 3d June, 
1897, entitled "An Act declaring the Potomac Flats a 
public park, under the name of the Potomac Park," in 
these words: 

"Be it enacted by the Senate and House of Repre- 
sentatives of the United States in Congress assembled, 
That the entire area formerly known as the Potomac 
Flats, and now being reclaimed, with the tidal reser- 
voirs, be and the same are hereby, made and declared 
a public park, under the name of The Potomac Park, 
and to be forever held and used as a park, for the recre- 
ation and pleasure of the people." 

These words operated as a complete and conclusive 
dedication of the properties described to the public uses, 
excluding forever all claim of any right in private indi- 
viduals or corporations inconsistent with this absolute 
dedication to the public — "to be held forever and used 
as a park for the recreation and pleasure of the people." 

The choice of the name and the contest attending its 
selection, tended to enforce the idea of the public char- 
acter. For Congress declined to call it by the humdrum 
and incorrect name of Riverside, that had already been 
given to other localities; but, justly influenced by its 
local surroundings and geographical history, it bestowed 
upon this lovely domain — but recently a fen and morass, 
now reclaimed by the skill of the servants of the nation 
— the beautiful appellation belonging to the grand river 
whose arms hold it in its embrace on its course, as it 
flows in tranquil beauty in front of the unpretentious 
but dignified and revered home of the greatest of man- 
kind, the Father of His Country— POTOMAC— The 
River of Swans. 

Under the intelligent care of the public servants we 
have seen it growing in beauty and general usefulness, 
forming what Congress designed it should be, "a park 

12 



for the recreation and pleasure of the people," as well 
of the citizens of the neighboring cities as of the multi- 
tudes of people from elsewhere visiting the city. 

There is nowhere to be seen, annexed to any other 
city in the world, so lovely a demesne, fertile as the 
Delta of the Nile, and enriched by similar agencies of 
nature. 

The difficulty of clearing the most newly reclaimed 
lands has deferred the complete exhibition of what will 
be the great result. The eastern part, when intersected 
by graceful roads, will be bordered at each step by finest 
floral and arboreal beauties; with tasteful lakes, filled 
with rare water plants ; with the interesting adornments 
of myriads of novel plants that may easily be introduced 
from foreign countries, as was formerly practiced by 
Government officials for the public use. 

In process of time these gardens and drives will be a 
wonder and delight to the crowds who will flock to see 
them; and will thus become teachers by example. 

These and similar advantages will be the result of a 
compliance with the precept of Congress when it indi- 
cated the purposes for which the Potomac Park should 
be used, with a result that will be the delight and admir- 
ation of all. 



But I regret to say we have heard a project sug- 
gested at variance with these wholesome and acceptable 
uses, and designed to substitute others that, it seems to 
me, would be manifestly in opposition at once to the 
wishes of the original owners of the property out of 
which the District was formed — of Congress — of the 
local legislature, and of the great majority of the people 
of the country, and of the District of Columbia in par- 
ticular. 

13 



The project, as I have heard it described, is to con- 
vert the eastern part of the Park into a great football 
and baseball ground, where vast multitudes are to as- 
semble, who will hold full possession of that part of the 
Park, to the practical exclusion of every other use ex- 
cept for the playing of such games. 

Excellent as well-conducted athletic sports are ac- 
knowledged to be, I can see no excuse for such a need- 
less concession in favor of this class of amusements. 
Certainly there can be no necessity for this encroach- 
ment upon the people's park ; for almost every evening 
one may see at least three to five such games in full play 
in the grounds south of the President's house — about 
three in the Ellipse and perhaps two near the foot of 
the Monument. 

All these games are in progress upon public property, 
without the slightest charge, as I understand to the 
gentlemen who, as the newspapers take pains to inform 
us almost daily, "have signed for $10,000," or frequently 
for larger sums, exceeding the salaries of the highest 
judicial officers in the country; and all this is going on 
while there are "grounds" scattered all over the city and 
its neighborhood, where, we are told, many thousand 
spectators gather at great profit to the corporations or 
individuals who are operating these money-making 
schemes. 

I understand further that some of these athletes, who 
contemplate this occupation practically of the eastern 
part of the Park, complain that they cannot walk all the 
way from the city to the proposed "grounds," and there- 
fore they plan to obtain a ferry privilege from the neigh- 
borhood of Seventh Street to the beautiful grounds of 
the Park — of course, another scheme for making money 
by the designers and operators of the said ferry. I fear 
the athletic exercises are not so strengthening as their 
votaries assert, since their vigor will not admit of the 
rather moderate walk they think is too long for them. 

14 



I have heard that General Banks, whqn a lad, was ac- 
customed to walk several miles at nights after his labor 
in the mill was ended, to learn the lessons that enabled 
him to become Member of Congress, Governor, etc. ; but 
then perhaps he had not "signed" for $10,000, or been 
"bought out" by one game from another. 

We are told 40,000 people frequently assemble to 
watch such games. Suppose these plans succeed — what 
chance will the other people of the United States (not 
"signers" or stockholders) have of using the Potomac 
Park ? Many of those other people are taxpayers here ; 
some live many miles away; but they would like occa- 
sionally to have the benefit of the Park which was de- 
signed to be secured to them by the law. How are they 
to obtain the enjoyment of what is plainly their right if 
this rapacious scheme should prevail ? For these 40,000, 
with the "signers," etc., must be furnished with great 
buildings to accommodate their great crowds. Who 
are to provide all these receptacles; and who are to 
receive the charges for renting out the seats; and in 
what part of the Acts of Congress referred to is au- 
thority given to occupy the Park with the monstrous 
wooden sheds to accommodate these thousands? 

The United States was supposed to have obtained a 
great victory for good order when it was believed the 
court's decision would exclude the Ferris wheel and its 
numerous congenors from the Park; but if this land is 
now to be turned over to the support of the football, 
baseball and ferry scheme, the supposed victory would 
prove to have been worse than a defeat ; — like the disas- 
trous success that befel Pyrrhus, of Epirus. 

And who are to keep the peace at those assemblages? 
— for it is said there have sometimes been differences 
of opinion among the parties interested. 

I have suggested these difficulties among many others 
that are obvious; for my present purpose is simply to 

15 



call public attention, without further delay, to this ra- 
pacious project and to beg all who hear me to enter their 
protests against so dangerous an intrusion upon the 
rights of the citizens. 

Many people of this city, female as well as male, are 
advanced in years. They, for the most part, may be as- 
sumed to be well-behaved people, who are not pro- 
moters of troublesome crowds in the streets; but who 
are engaged in useful industries, and who pay their taxes. 
Some of them are told by their physicians that their 
health requires they should occasionally take exercise 
in the public parks, and some of them even take 
the liberty to take the advice. What are these people 
to do when they desire to visit the Potomac Park, when 
the bleaching boards shall have been erected, and the 
ferries are in operation? The "signers" and the twenty 
persons who alone play the games, as I understand (nine 
on each side and the umpire), may get along pretty well, 
if they have "signed off" for the indefinite thousands; 
but some of us cannot "sign off." What are they to do 
when they find these lands, especially dedicated for "the 
recreation of the people," thus monopolized by a favored 
game? 

Rome, at one time, we are told, was a magnificent and 
formidable city — the terror of its opponents; but, as 
history informs us, after the great empire had introduced 
the vices of the conquered people of the East with the 
prisoners brought to swell the triumphs; and had de- 
cided to employ those captives to fight its battles, while 
the Romans contented themselves with feasting on 
costly foods, luxuriating in incessant baths, and constant 
attendance at the circuses, and at the savage contests of 
the gladiators, the eternal cry of the idle populace was 
for feasts and play — "panon ct circcnscs '—hrtSid. and the 
circuses — and when that day came, then Rome fell 
forever. 

St. Paul's account of the indolent Corinthians proves 
how extensively the effeminate example of the degener- 

16 



ate Romans had spread: "The people sit down to eat 
and drink, and rise up to play." 

I am glad to be informed that our excellent Secretary 
of War has refused his assent to a surrender of part of 
the Potomac Park to the occupation by the scientists of 
the Smithsonian Institution for experiments with aero- 
planes, a scheme indefinitely more meritorious. If this 
is so, which I am informed is correct, there can be no 
doubt that the football and ferry plan will fall through. 

But it is well to consider that the price of liberty is 
eternal vigilance. 



June 8, 1914. 




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